[Federal Register Volume 85, Number 202 (Monday, October 19, 2020)]
[Proposed Rules]
[Pages 66287-66290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20327]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153 and 157

[Docket No. RM20-18-000]


Waiver of the Water Quality Certification Requirements of Section 
401(a)(1) of the Clean Water Act

AGENCY:  Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the Environmental Protection Agency's Clean Water 
Act Section 401 Certification Rule and Executive Order 13868, the 
Federal Energy Regulatory Commission (Commission) is proposing rules to 
categorically establish a reasonable period of time for a certifying 
authority to act on a water quality certification request related to 
natural gas and liquified natural gas projects for which either an 
application filed pursuant to section 3 or section 7(c) of the Natural 
Gas Act (NGA) is pending with the Commission. The Commission is 
amending its regulations to define when the certification requirements 
of section 401(a)(1) of the Clean Water Act (CWA) have been waived as a 
result of the failure of the state or other authorized certifying 
agency to act on a request for CWA certification filed by an applicant 
for a Commission-issued section 7 certificate of public convenience and 
necessity or section 3 authorization under the NGA. The Commission is 
allowing CWA certifying authorities up to one year after the certifying 
authority's receipt of a request for section 401 water quality 
certification to grant or deny the applicant's request for 
certification.

DATES: Comments are due November 18, 2020.

ADDRESSES: You may send comments, identified by RM20-18-000, by either 
of the following methods:
     Agency website: Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format.
     Mail: Those unable to file electronically may mail 
comments to: Federal Energy Regulatory Commission, Secretary of the 
Commission, 888 First Street NE, Washington, DC 20426. Hand-delivered 
comments should be delivered to Health and Human Services, 12225 
Wilkins Avenue, Rockville, Maryland 20852.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Comment 
Procedures section of this document.

FOR FURTHER INFORMATION CONTACT: 
David Swearingen (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6173, david.swearingen@ferc.gov.
Karin Larson (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8236, karin.larson@ferc.gov.
Rachael Warden (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8717, rachael.warden@ferc.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

Paragraph Numbers

I. Background--743-
II. Proposed Revisions--746-
III. Regulatory Requirements--747-
    A. Information Collection Statement--747-
    B. Environmental Analysis--748-
    C. Regulatory Flexibility Act--749-
    D. Comment Procedures--750-
    E. Document Availability--751-

[[Page 66288]]

I. Background

    1. On April 10, 2019, Executive Order 13868 entitled Promoting 
Energy Infrastructure and Economic Growth was issued with the stated 
goal of enabling timely construction of energy infrastructure and 
reducing regulatory uncertainties from the permitting process for 
infrastructure projects. The Executive Order directed the Environmental 
Protection Agency (EPA) to update its regulations governing water 
quality certification under section 401 of the Clean Water Act 
(CWA).\1\ CWA section 401 is a direct grant of authority to states \2\ 
to review for compliance with appropriate federal, state, and tribal 
water quality requirements any discharge into a water of the United 
States that may result from a proposed activity that requires a federal 
license or permit. Section 401(a)(1) of the CWA requires that an 
applicant for a federal license or permit to conduct activities that 
may result in a discharge into the navigable waters of the United 
States, such as a Federal Energy Regulatory Commission (Commission) 
hydroelectric project license or a Natural Gas Act (NGA) certificate of 
public convenience and necessity for a natural gas pipeline that 
crosses a navigable water, must provide the federal permitting agency a 
water quality certification from the state in which the discharge 
originates or evidence of waiver thereof.\3\ If the state ``fails or 
refuses to act on a request for certification, within a reasonable 
period of time (which shall not exceed one year) after receipt of such 
request,'' then certification is waived.\4\
---------------------------------------------------------------------------

    \1\ 33 U.S.C. 1341(a)(1).
    \2\ Indian tribes that have been approved for ``treatment as a 
state'' status may also have the authority under section 401 to 
issue water quality certifications.
    \3\ 33 U.S.C. 1341(a)(1).
    \4\ Id.
---------------------------------------------------------------------------

    2. In compliance with the Executive Order, on June 1, 2020, the EPA 
issued the Clean Water Act Section 401 Certification Rule 
(Certification Rule), which revises its regulations under 40 CFR part 
121. The rule was published in the Federal Register on July 13, 2020, 
and becomes effective 60 days after publication on September 11, 2020. 
The Certification Rule applies prospectively to certification requests 
submitted after the effective date of the rule. The Executive Order 
mandates that ``[w]ithin 90 days of [EPA's issuance of revised 
regulations], if necessary, the heads of each 401 Implementing Agency 
\5\ shall initiate a rulemaking to ensure their respective agencies' 
regulations are consistent with'' the EPA's Certification Rule and 
``with the policies set forth in section 2 of this order.'' \6\
---------------------------------------------------------------------------

    \5\ ``Implementing agency'' is defined as a federal agency that 
issues permits or licenses subject to the certification requirements 
of section 401 of the CWA.
    \6\ E.O. 13868 of Apr 10, 2019, 84 FR 15495, 15496 (Apr. 15, 
2019).
---------------------------------------------------------------------------

    3. Section 121.6(a) of the Certification Rule requires federal 
permitting agencies \7\ to establish the reasonable period of time for 
the certifying authority \8\ to act on a water quality certification 
request, which period may not exceed one year from receipt. If the 
certifying authority fails or refuses to act on a certification request 
within the reasonable period of time, then the certification 
requirement for a license or permit is waived.\9\ The reasonable period 
of time may be set either categorically or on a case-by-case basis.\10\
---------------------------------------------------------------------------

    \7\ The Certification Rule defines ``Federal Agency'' as any 
federal government agency to which application is made for a license 
or permit that is subject to the requirements of CWA section 401. 
Clean Water Act Section 401 Certification Rule, 85 FR 42210, 42285 
(July 13, 2020) (to be codified at 40 CFR pt. 121).
    \8\ The Certification Rule defines ``Certifying Authority'' as 
the agency with the responsibility to certify compliance with 
applicable requirements for water quality under CWA section 401. Id. 
The Commission's regulations refer to a ``Certifying Authority'' as 
a ``Certifying Agency.''
    \9\ Id. at 42286.
    \10\ See id. at 42285. In setting the reasonable period of time 
the Certification Rule calls for the federal agency to consider the 
complexity of the proposed project, the nature of any potential 
discharge and the potential need for studies of the effects from the 
proposed discharge. See id. at 42286.
---------------------------------------------------------------------------

    4. The Commission's practice has been to deem the one-year waiver 
period to commence when the certifying agency receives the request. In 
1987, the Commission promulgated subsections 4.34(b)(5)(iii) and 
5.23(b)(2) \11\ of its regulations governing hydropower licensing 
proceedings to provide that a certifying agency is deemed to have 
waived certification if it has not denied or granted certification by 
one year after the date it received a written certification 
request.\12\ Accordingly, subsections 4.34(b)(5)(iii) and 5.23(b)(2) 
\13\ of the Commission's regulations establish for hydroelectric 
projects a categorical ``reasonable period of time'' of one year.
---------------------------------------------------------------------------

    \11\ 18 CFR 4.34(b)(5)(iii) and 5.23(b)(2). Part 4 of the 
Commission's regulations governs applicants using the traditional 
licensing process and part 5 governs applicants using the integrated 
license application process.
    \12\ Waiver of the Water Quality Certification Requirements of 
Section 401(a)(1) of the Clean Water Act, Order No. 464, 52 FR 5446 
(Feb. 23, 1987), FERC Stats. & Regs. ] 30,730 (1987).
    \13\ 18 CFR 4.34(b)(5)(iii) and 5.23(b)(2).
---------------------------------------------------------------------------

    5. While no comparable regulation exists for NGA infrastructure 
proceedings, the Commission's practice is to also categorically apply a 
one-year waiver period for water quality certification applications 
filed in connection to a proposed natural gas or liquefied natural gas 
infrastructure project application.\14\
---------------------------------------------------------------------------

    \14\ Constitution Pipeline Co., LLC, 162 FERC ] 61,014, at P 16 
(explaining that since 1987 the Commission has consistently 
determined, both by regulation and in our orders on proposed 
projects, that the reasonable period of time for action under 
section 401 is one year after the date the certifying agency 
receives a request for certification), reh'g denied, 164 FERC ] 
61,029 (2018).
---------------------------------------------------------------------------

II. Proposed Revisions

    6. We continue to believe that the benefits of setting a 
categorical waiver period of one year, as permitted by the CWA, best 
serves the public interest by avoiding uncertainty associated with 
open-ended and varying certification deadlines.\15\ Considering the 
historical complexity of proposed projects and the nature and potential 
need for studies of the discharge, the Commission proposes to continue 
to use the categorical one-year waiver period as the ``reasonable 
period of time'' within which the certifying authority must act and to 
codify this waiver period for natural gas and liquified natural gas 
projects by adding the categorical one-year waiver period to its 
regulations governing applications for authorizations under sections 3 
and 7 of the NGA for liquefied natural gas and natural gas facilities 
in parts 153 and 157. Given that it would be administratively 
inefficient and a potential source of controversy to establish 
reasonable time periods on a case-by-case basis; that state certifying 
agencies may vary in terms of their procedures for reviewing requests 
for water quality certification; and that natural gas projects before 
the Commission include highly complex proposals that may well take a 
state a significant time to review, we find that providing the maximum 
time permitted under the CWA, i.e., a categorical one-year waiver 
period, is reasonable.
---------------------------------------------------------------------------

    \15\ Constitution Pipeline Co., LLC, 162 FERC ] 61,014 at PP 16-
17, 20 (determining that setting a one-year waiver period yields 
substantial benefits to the applicant, the certifying agency, and 
the Commission); Constitution Pipeline Co., LLC, 164 FERC ] 61,029 
at P 10 (same). See Order No. 464, FERC Stats. & Regs. ] 30,730 
(concluding that giving the certifying agencies the maximum period 
allowed by the CWA will not unduly delay Commission processing of 
license applications and would achieve a major objective of the 
rule--obtaining early certainty as to when certification would be 
deemed waived and avoiding open-ended certification deadlines).

---------------------------------------------------------------------------

[[Page 66289]]

III. Regulatory Requirements

A. Information Collection Statement

    7. The Paperwork Reduction Act \16\ requires each federal agency to 
seek and obtain the Office of Management and Budget's (OMB) approval 
before undertaking a collection of information (i.e., reporting, 
recordkeeping, or public disclosure requirements) directed to ten or 
more persons or contained in a rule of general applicability. OMB 
regulations require approval of certain information collection 
requirements contained in proposed rules published in the Federal 
Register.\17\ This proposed rule does not contain any information 
collection requirements. The Commission is therefore not required to 
submit this rule to OMB for review.
---------------------------------------------------------------------------

    \16\ 44 U.S.C. 3501-3521.
    \17\ See 5 CFR 1320.11.
---------------------------------------------------------------------------

B. Environmental Analysis

    8. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant effect on the human environment.\18\ The Commission 
has categorically excluded certain actions from this requirement as not 
having a significant effect on the human environment, including the 
promulgation of rules that are clarifying, corrective, or procedural, 
or that do not substantially change the effect of legislation or the 
regulations being amended.\19\ This proposed rule proposes to 
categorically establish a reasonable period of time for a certifying 
agency to act on a water quality certification request for natural gas 
and liquified natural gas projects with an application pending with the 
Commission. Because this proposed rule is procedural in nature, 
preparation of an Environmental Assessment or an Environmental Impact 
Statement is not required.
---------------------------------------------------------------------------

    \18\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 41 FERC ] 61,284 (1987).
    \19\ 18 CFR 380.4(a)(2)(ii).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

    9. The Regulatory Flexibility Act of 1980 (RFA) \20\ generally 
requires a description and analysis of proposed rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of a proposed rule and minimize any 
significant economic impact on a substantial number of small 
entities.\21\ In lieu of preparing a regulatory flexibility analysis, 
an agency may certify that a proposed rule will not have a significant 
economic impact on a substantial number of small entities.\22\ The 
Small Business Administration's (SBA) Office of Size Standards develops 
the numerical definition of a small business.\23\ The SBA has 
established a size standard for pipelines transporting natural gas, 
stating that a firm is small if its annual receipts (including its 
affiliates) are less than $30 million.\24\
---------------------------------------------------------------------------

    \20\ 5 U.S.C. 601-612.
    \21\ Id. 603(c).
    \22\ Id. 605(b).
    \23\ 13 CFR 121.101.
    \24\ 13 CFR 121.201, subsection 486.
---------------------------------------------------------------------------

    10. If enacted, this proposed rule would apply to entities, a small 
number of which may be small businesses, with an application for a 
project pending with the Commission under section 3 or 7 of the NGA 
that require a water quality certification under section 401(a)(1) of 
the CWA. However, the proposed rule would have no effect on these 
entities, regardless of their status as a small entity or not, as the 
rule imposes no action or requirement on those entities. Accordingly, 
pursuant to section 605(b) of the RFA, the Commission certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities.

D. Comment Procedures

    11. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due November 18, 2020. Comments must refer to 
Docket No. RM20-18-000, and must include the commenter's name, the 
organization they represent, if applicable, and their address.
    12. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    13. Commenters that are not able to file comments electronically 
must send an original of their comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE, 
Washington, DC 20426.
    14. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

E. Document Availability

    15. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room due to the President's March 13, 2020 
proclamation declaring a National Emergency concerning the Novel 
Coronavirus Disease (COVID-19).
    16. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    17. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

List of Subjects

18 CFR Part 153

    Exports, Natural gas, Reporting and recordkeeping requirements.

18 CFR Part 157

    Administrative practice and procedure, Natural gas, Reporting and 
recordkeeping requirements.

    By direction of the Commission.

    Issued: September 9, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission is proposing to 
amend parts 153 and 157, chapter I, title 18, Code of Federal 
Regulations, as follows:

[[Page 66290]]

PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR 
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS

0
1. The authority citation for part 153 continues to read as follows:

    Authority: 15 U.S.C. 717b, 717o; E.O. 10485; 3 CFR, 1949-1953 
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136, 
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).

0
2. Revise Sec.  153.4 to read as follows:


Sec.  153.4  General requirements.

    The procedures in Sec. Sec.  157.5, 157.6, 157.8, 157.9, 157.10, 
157.11, 157.12, 157.22, and 157.23 of this chapter are applicable to 
the applications described in this subpart.

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND 
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER 
SECTION 7 OF THE NATURAL GAS ACT

0
1. The authority citation for part 157 is revised to read as follows:

    Authority:  15 U.S.C. 717-717w, 3301-3432; 33 U.S.C. 1341(a)(1); 
42 U.S.C. 7101-7352.

0
2. Revise Sec.  157.22 to read as follows:


Sec.  157.22  Schedule for final decisions on a request for a Federal 
authorization.

    (a) For an application under section 3 or 7 of the Natural Gas Act 
that requires a Federal authorization--i.e., a permit, special use 
authorization, certification, opinion, or other approval--from a 
Federal agency or officer, or State agency or officer acting pursuant 
to delegated Federal authority, a final decision on a request for a 
Federal authorization is due no later than 90 days after the Commission 
issues its final environmental document, unless a schedule is otherwise 
established by Federal law.
    (b) For requests for a water quality certification submitted 
pursuant to section 401(a)(1) of the Federal Water Pollution Control 
Act (Clean Water Act) in connection with a project for which 
authorization is sought from the Commission under section 3 or 7 of the 
Natural Gas Act, the reasonable period of time during which the 
certifying agency may act on the water quality certification request is 
one year from the certifying agency's receipt of the request. A 
certifying agency is deemed to have waived the certification 
requirements of section 401(a)(1) of the Clean Water Act if the 
certifying agency has not denied or granted certification by one year 
after the date the certifying agency received a written request for 
certification.

[FR Doc. 2020-20327 Filed 10-16-20; 8:45 am]
BILLING CODE 6717-01-P


